Ill due to an excessive workload: entitled to damages?

On 8 September 2022 the Court of Appeal of 's-Hertogenbosch awarded an ill employee damages amounting to EUR 28,155.36 gross [1]. The employee in question had been working as a caregiver in a residential care centre for the elderly since 1 September 2007, where she performed care duties, solely/mainly during the night. She initially performed these care tasks together with a care assistant. From June 2016 she had to perform these care tasks by herself, without a care assistant. Due to the resulting excessive workload, the employee eventually became ill. Resumption of her own work turned out to be impossible. After 104 weeks of illness, the employer requested and received permission (from the UWV) for termination of the employment contract, following which the employment contract was terminated on 1 November 2021.

In the first instance the employee claimed additional compensation (“billijke vergoeding”) in the amount of EUR 78,000 gross, to be increased by an amount of EUR 10,000 net in immaterial damages (or (alternatively) to be increased by an additional compensation of EUR 10,000 gross) and compensation for legal costs in the amount of EUR 8,000 excluding VAT. According to the employee, the employer's acts or omissions should be considered as seriously culpable. The employee argued that, although she had repeatedly addressed the excessive workload, the employer had not interfered in a timely manner.

The Court of Appeal did not award any additional compensation to the employee. According to the Court of Appeal, the high threshold, required to substantiate seriously culpable acts or omissions, was not met. However, the Court of Appeal did award damages because the employer had not fulfilled its so-called duty of care as described in Section 7:658 (1) of the Dutch Civil Code. To this end, the Court of Appeal considered, among other things, that the employer had taken insufficient measures to prevent overburdening of the employee. This while, according to the Court of Appeal, it follows from the facts and circumstances of this particular case that the workload was excessive. With regard to the causal relationship between the employer's failure to fulfil its duty of care and the burn-out of the employee in question, the Court of Appeal considered that there were more than sufficient indications to justify the conclusion that the excessive workload had predominantly contributed to the employee's burn-out. The employer's argument that the burnout was inextricably related to the employees persona or was due to her personal circumstances was, according to the Court of Appeal, insufficiently substantiated.

In estimating the awarded damages the Court of Appeal deemed it reasonable to take into account the loss of income over a period of three years. The claim for compensation of immaterial damages and actually incurred lawyer's fees were insufficiently substantiated and thereby rejected. The claimed pension damage was also rejected.

What is remarkable in this case is that the Court of Appeal considered there are no grounds for awarding additional severance compensation as the employer has not acted in a serious culpable manner. Jet the Court of Appeal does consider grounds for awarding damages as the employer has insufficiently fulfilled his duty of care. If you would like to know more about the employer's duty of care in case of a high workload or in general, please feel free to reach out.

 [1] Gerechtshof ’s-Hertogenbosch 8 september 2022, ECLI:NL:GHSHE:2022:3119